U.S. v. Robins

• Decision Date: 20 November 1992
• Docket Number: No. 91-1850,91-1850
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Milton Eugene ROBINS, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

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978 F.2d 881 UNITED STATES of America, Plaintiff-Appellee,
v.
Milton Eugene ROBINS, Defendant-Appellant. No. 91-1850. United States Court of Appeals,
Fifth Circuit. Nov. 20, 1992.
Rehearing Denied Jan. 5, 1993.

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Melvyn Carson Bruder, Dallas, Tex., for defendant-appellant.

Joe C. Lockhart, Asst. U.S. Atty., Ft. Worth, Tex., John P. Lydick, Asst. U.S. Atty., Marvin Collins, U.S. Atty., Dallas, Tex., for plaintiff-appellee.

Appeal from the United States District Court for the Northern District of Texas.

Before JOLLY, and DUHE, Circuit Judges, and PARKER, ^* District Judge.

ROBERT M. PARKER, District Judge.

Defendant-Appellant Milton Eugene Robins (Robins) raises several points of error in this case--errors allegedly committed at the investigatory, pre-trial, trial and sentencing stages of the proceedings against him. We affirm on all points.

I. Facts and Procedural History

A. Trial Facts

The proceedings below uncovered the following facts.

In June, 1989, John Camiola (Camiola) was introduced to Drug Enforcement Agency (DEA) agents in Houston, Texas. These agents were operating an undercover, "reverse sting" operation, whereby they would sell marijuana to individuals (as opposed to buying it, thus the "reverse" nature of the operation). Camiola operated as a "broker," introducing prospective buyers of marijuana to the DEA agents and charging a fee for this service.

On November 14, 1989, Camiola introduced Robins to the agents. Several agents, Camiola and Robins proceeded to the farm where the agents kept marijuana for sale. After inspecting the marijuana available, Robins selected 618 pounds that he purchased. On the following day, the parties met to arrange for the transportation of the purchased marijuana. At that meeting, another purchase of marijuana was discussed when an agent showed Robins a sample of some marijuana that had not been available for his inspection the day before. Later in the day, Camiola, Tom Meigel (an associate of Camiola's) and Robins again met with the agents to pay for and to take possession of the 618 pounds of marijuana. The marijuana was loaded into a 1989 Ford pickup truck, which was delivered to Robins and then turned over to Neal Massey and Nona Harris. Several hours later, at the request of DEA agents, state law enforcement officials stopped the truck in Walker County, Texas, arrested Massey and Harris, and seized the marijuana.

On the following day--November 16, 1989--Camiola, Robins, and the DEA agents met again. The seizure of the truck in Walker County, Texas was discussed, as was the seizure's probable effect on the other prospective purchasers of marijuana who were "in town."

On November 17, 1989, Camiola and Robins accompanied agents to the farm where the marijuana was stored, and Robins selected 2,800 pounds of marijuana to be loaded on a trailer previously furnished to the agents. The parties agreed that the trailer full of marijuana would be delivered by the DEA agents to the buyer, at which time "more than half" of the cost of the marijuana would be paid. Delivery of the trailer and marijuana was delayed until November 20, 1989. The trailer was delivered to Robins, who in turn delivered it to his buyers.

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Ultimately, the trailer was stopped in Fort Worth, Texas. And the marijuana was seized.

On June 1, 1990, DEA and other law enforcement agents searched Robins' residence in Van Zandt County, Texas, where they recovered numerous documents that were ultimately used to compute Robins' sentence.

In March 1991, Robins was tried in a joint trial with Glenn Ivan Allison and Kim Dee Kelly. Robins was charged with two offenses: (1) conspiracy to possess with intent to deliver more than 100 kilograms of marijuana (in violation of 21 U.S.C. § 841), and (2) aiding and abetting a co-defendant's possession with intent to deliver more than 1000 kilograms of marijuana (in violation of 21 U.S.C. § 841 and 18 U.S.C. § 2). At trial, Neal Massey and Jack Vaughan testified that on occasions prior to November 1989, they participated in marijuana transactions at the direction of Robins.

B. Appellate Posture

Robins raises the following points of error: (1) the district court erred by not properly instructing the jury as to the meaning of the term "agent" as used in the instructions given on the law of entrapment, thereby denying Robins the opportunity to have the jury decide whether he had been indirectly entrapped; (2) the district court erred in not granting Robins' motion for judgment of acquittal as to Count Two of the indictment (the aiding and abetting count) or his motion for a new trial because of the jury's variant verdict--acquitting the co-defendant allegedly aided and abetted by Robins on the same count on which Robins was convicted of aiding and abetting--which verdict rendered the evidence insufficient to sustain Robins' conviction for aiding and abetting that co-defendant; (3) the district court erred by not ordering the government to affirm or deny the existence of unlawful electronic surveillance at the residence of Robins, as required by 18 U.S.C. § 3504(a)(1)--there having been a claim that such activity occurred; (4) Robins was prejudiced by the comment of a co-defendant's counsel that "other people who were involved" had "decided to plead guilty"--inasmuch as the trial court failed to give the jury any curative, limiting instruction; and (5) the district court erred in computing the base offense level applicable to Robins, and thus that the court erred in sentencing him within the range of punishment prescribed by that base offense level.

II. Analyses of Points of Error

A. The Agency Instruction

A district court is granted broad discretion in fashioning jury instructions. The relevant question is whether there has been an abuse of this discretion by the district court. United States v. Johnson, 872 F.2d 612, 621-622 (5th Cir.1989).

For purposes of his entrapment defense, Robins requested that the district court give the jury this explicit "ignorant pawn" instruction:

paid informants and ignorant pawns of the government are both "agents" of the government for purposes of this instruction. An "ignorant pawn," of the government is a person who is controlled by or is acting at the direction of the government but who is unaware that the government is using him.

The district court refused, instructing the jury that:

Law enforcement officers are persons in the employment of federal, state, or local law enforcement agencies. Agents of law enforcement officers, for purposes of this instruction, include persons, such as paid informants, who act solely for or on behalf of actual law enforcement officers.

(emphasis added here) This instruction is essentially the one approved by this Circuit's 1989 Johnson case. Compare Johnson, 872 F.2d at 622. As Johnson made clear, the reference to "a paid informant" as an example does not mislead the jury or imply that others are excluded from the sphere of legally cognizable "agents." The district court committed no error in terms of its agency instruction. United States v. Sarmiento, 786 F.2d 665, 668 (5th Cir.1986) ("This circuit has not adopted the 'unsuspecting

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middleman' theory of entrapment").

B. Aiding and Abetting, Variance and the Joint Trial

Robins argues that the jury's acquittal of the principal defendant--Allison--on Count Two (charging Defendant Allison with possession of marijuana with intent to distribute, and charging Co-Defendants Robins, Darrell Preston Smith, and Kim Dee Kelly with aiding and abetting Allison's omission of that offense), worked such a variance of verdicts as to render the evidence necessarily insufficient to sustain Robins' conviction for aiding and abetting Allison. Robins thus contends that the district court erred in not granting Robins' motion for acquittal or his motion for a new trial. Some competing policy considerations make this an apparently close question. But for the following reasons, the better view is that displayed by the district court, and we accordingly affirm on this point as well.

Usually an indictment for aiding and abetting alleges that one aided and abetted a named principal "and unnamed, unknown others." In those cases, if the named principal is found innocent of committing the crime of which the principal is accused of committing and the accused aider and abettor is alleged to have assisted, there is no apparent variance between the acquittal of the indicted named principal and the indicted aider and abettor. Robins' case is unusual, in that the indictment returned by the Grand Jury against Robins read only that he aided and abetted Allison--and not that he aided and abetted anyone else, known and named or otherwise. Thus, there does exist an apparent variance between the jury's verdicts in this joint trial.

Robins contends that when Accused Principal Offender Allison was acquitted of the crime Robins was alleged to have aided and abetted, an essential element of the crime of aiding and abetting with which Robins was charged could not then be found in the government's case against Robins. Robins argues that to "presume" this element to have been found by the same jury in the aiding and abetting case against him--despite its "apparent rejection" of it in the underlying case against Principal Allison--amounted to an impermissible enlargement of the indictment against Robins by the district court (i.e., an enlargement of the indictment to one including unnamed, unknown principles). The government argues that the criminal jury principle of lenity, or "jury nullification" allows for a logical explanation for the apparent variance in verdicts--allowing for Robins' conviction of aiding and abetting Allison even though the jury acquitted Allison of the offense Robins is charged with having aided and abetted. The government has the better of the arguments.

The prosecution must prove each element of its case against any...